Cite as: Will of Nelson J. Nutter, 2010-4133/A, NYLJ 1202588020952, at *1 (Surr. SUF., Decided July 9, 2012)

Surrogate John M. Czygier


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Decided: July 9, 2012


Attorneys for Objectants/Movant: Novick & Associates, P.C., Huntington, New York.

Attorneys for Objectants: Phillips Weiner et al., Lindenhurst, New York.





In this contested probate proceeding, an instrument dated May 24, 2010, has been offered for probate as the last will and testament of the above named decedent by Christopher Nutter ("Christopher"), the executor nominated therein. Objections to probate were timely filed by three of decedent's six children.

The court now has before it a motion by Christopher for an order granting petitioner summary judgment in granting the probate of the propounded instrument. No opposition to this motion has been submitted.

Decedent died on July 2, 2010, survived by five children and several grandchildren. One granddaughter is a distributee, as her mother predeceased her. Petitioner is a grandson of decedent. His father, Thomas Gerard Nutter, who takes nothing under the propounded instrument, was one of the witnesses to its execution. Thomas Nutter testified that his father, the testator herein, appeared to be acting voluntarily and was not under the influence of any person or of alcohol or drugs, and was of sound mind on the date the will was executed (Petitioner's Exhibit E, Transcript of Examination of Thomas Gerard Nutter, page 10, line 17, through page 11, line 4). The second witness was a next-door neighbor of decedent, who had known the decedent since 1972 (Petitioner's Exhibit D, Transcript of Examination of Barbara Gail Rao, page 5, lines 13 through 15). This witness also testified that decedent appeared to be acting voluntarily, he appeared to be of sound mind, he appeared to know what he was doing, and he did not appear to be




under the influence of alcohol or drugs (Trans. of Ms. Rao, page 12, lines 6 through 20). The record reflects that decedent's will was prepared by, and executed under the supervision of, an attorney.

The Summary Judgment Motion

Summary judgment is designed to eliminate from the trial calendar litigation that can be resolved as a matter of law (see, Andre v. Pomeroy, 35 NY2d 361). The court's burden is not to resolve issues of fact, but merely to determine if such issues exist (see, Dyckman v. Barrett, 187 AD2d 533).

The party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (see, Zarr v. Riccio, 180 AD2d 734).

Due Execution

The proponent has the burden of proof on the issue of due execution (see Matter of Kumstar, 66 NY2d 691, rearg. denied, 67 NY2d 647). Due execution requires that the testamentary instrument be signed by the testator, that such signature shall be affixed to the will in the presence of the attesting witnesses or that the testator acknowledge to each witness that the signature affixed on the instrument was affixed by him or at his direction, that the testator publish to the attesting witnesses that the testamentary instrument is his will, and that at least two attesting witnesses attest to the testator's signature, sign their names and affix their residence addresses at the end of the will (EPTL 3-2.1).

Where, as here, the execution is supervised by an attorney, the proponent is entitled to a presumption of regularity (see Matter of Kumstar, supra; Matter of Collins, 60 NY2d 466). In the instant case, the will was supervised by Eileen Cacioppo Coen, Esq., the attorney/draftsperson of the will.

Based upon the foregoing, the moving party has prima facie established due execution of the propounded instrument, thereby shifting the burden to objectants to lay bare their proof to the contrary. In light of the absence of any opposition to this motion, no proof to the contrary to the prima facie evidence has




ben provided.

Testamentary Capacity

Testamentary capacity requires that the testator be eighteen (18) years of age or older and be of sound mind and memory (EPTL 3-1.1). Within the context of making a will, capacity is the ability to think with sufficient clarity to understand and carry out the business to be transacted; to hold in mind the extent and nature of his property, the natural objects of his bounty, and the relation of one to the other (see, In re Heaton's Will, 224 NY 22).

The burden of proving testamentary capacity and understanding is on the proponent (see, Matter of Kumstar, 66 NY2d 691). Testamentary capacity may be established with evidence demonstrating that the decedent understood the nature and consequences of executing a will, knew the nature and extent of the property disposed of, and knew the identity and relation of those considered to be the natural objects of his bounty (see, Matter of Kumstar, supra).

In light of the failure of objectant to oppose the instant motion, and the testimony of the two attesting witnesses with respect to decedent's testamentary capacity, petitioner has met his burden with respect to decedent's testamentary capacity and understanding.

Undue Influence

The burden of establishing fraud or undue influence is always upon the person seeking to establish it (Matter of Walther, 6 NY2d 49). Factors the court is obliged to examine in making a determination as to whether a testator was subjected to undue influence include her physical and mental condition (see Matter of O'Brien, 182 AD2d 1135). One who is capable of acting independently is less likely to fall prey to the exercise of undue influence (see Matter of Mahnken, 92 AD2d 949).

Objectants have failed to provide any support for their assertions that the will was the product of either fraud or undue influence. The objections to probate based upon fraud and undue influence are, therefore, dismissed.





Accordingly, for the reasons set forth herein, it is

ORDERED, that summary judgment dismissing the objections is granted; and it is further

ORDERED, that a separate decision will issue granting probate of the testamentary instrument dated March 24, 2005.